By Father Stephen F. McGraw, J.D., and Father Donald J. Planty, J.C.D.
In the context of the debate over illegal immigration, most of us are by now familiar with the query, “What is it about ‘illegal’ that you don’t understand?” This saying may be said to betoken a fair point, inasmuch as it is an arresting way of exposing the tendency to disregard the rule of law, perhaps in favor of sentimentalism, in the context of illegal immigration. But at the same time this saying, if the truth be told, betrays an oversimplification that begs the question: Is there something about “illegal”—about law and the violation of law, about how and when and why law binds us—that needs to be better understood, and might such a better understanding be of help in resolving this issue?
From a Catholic perspective, grappling with the ethical questions raised by the current debate over illegal immigration requires an honest scrutiny of the Church’s social teaching on this issue, the main lines of whichare traced out in the Catechism of the Catholic Church: on the one hand, “[t]he more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin”; on the other hand, “[p]olitical authorities, for the sake of the common good for which they are responsible, may make the exercise of the right to immigrate subject to various juridical conditions, especially with regard to the immigrants’ duties toward their country of adoption” (Catechism of the Catholic Church 2241). There is then a summons to us, as individuals and as a nation, to human and Christian solidarity towards immigrants to our country, although the Catechism significantly notes that this obligation of solidarity is limited according to the extent that a nation is “able”—that is, what a nation is not reasonably able to do, consistent with the common good it is charged with promoting, it is not morally obliged to do. Moreover, in furtherance of the common good, the right to immigrate may justly be made subject to various laws, and to these laws there corresponds a moral obligation of respect and obedience. But the duty to uphold the rule of law, to be properly understood, requires an adequate context and the making of some critical distinctions, if we are ever to arrive at a proper resolution of this tension.
This essay doesnot pretend to cover the many aspects—social, political, economic—relating to the question of illegal immigration. Nor even, although it is concerned with ethics, does it claim to exhaust all the ethical dimensions that bear on this question. There is no intention to formulate specific policy proposals. The aim is to provide, in the area of law and ethics, of pastoral practice, and of public policy, some clear principles and a foundation, upon which a reasoned discourse on this issue can be solidly based.
PART I: CONSIDERATIONS REGARDING THE RULE OF LAW
A law is a law, but what kind?
In the first place, the current immigration laws must be seen in their proper context. They are human, positive laws, so called because they are “posited” or put forth by a human legislative authority. Antecedent to the positing of particular human laws, there is the moral law, or natural law, which is man’s participation, through right reason, in the eternal law of God. All human laws must be in accord with, and in some way based upon, the natural moral law: in some cases, human laws mirror the very strictures of the natural law itself; in other cases, where the natural law itself does not specify one or another course of conduct to be required or prohibited, human laws make particular determinations in furtherance of the common good, determinations that are reasonable and therefore binding, even though one might envision another reasonable, or even more reasonable, law or set of laws that the legislature could have chosen to enact. Laws that place various restrictions or conditions on the exercise of the right to immigrate fall into this latter category. That is, the natural law itself does not specify what precise juridical conditions are to be placed on the exercise of the right to immigrate. However, according to the natural law, political authorities are to make a determination, for the sake of the common good, as to what those juridical conditions are to be. To the extent that the particular human laws setting forth those conditions are just, that is, in accord with right reason, they are human laws that have a basis in the natural law and are morally binding. Note that the law or set of laws at issue may be far from the ideal law or set of laws; it suffices simply to be a reasonable determination in furtherance of the common good.
Let us return to the distinction set forth above between the two different kinds of human laws, for it is a distinction of considerable significance, both in Christian moral thought and in Anglo-American legal thought. On the one hand, we have human laws that are essentially embodiments of the natural law, commanding what the natural law already commands or, more commonly, forbidding what the natural law already forbids, such as murder or theft. Such a law is said to prohibit conduct that is “malum in se”, i.e., wrong or evil in and of itself. On the other hand, there are human laws that go beyond what is determined by the natural law itself but are nonetheless legitimate specifications regulating human conduct in accord with reason and the demands of the common good. Such a law, when negatively framed, is said to forbid action that is “malum prohibitum,” i.e., wrong, not by its nature, but because it has been prohibited by legitimate authority. Again, laws restricting immigration fall into this latter category—there is nothing inherently wrong with the prohibited conduct; rather the wrong in question is tied to the fact that competent authority, charged with care of the community, has made a determination that certain conditions or restrictions be placed on the entry of immigrants into the country. This is not to suggest that immigration laws, because they do not rise to the level of laws prohibiting intrinsic moral evils such as murder, are not legally and morally binding. But the distinction of “malum in se” vs. “malum prohibitum” is nevertheless important to bear in mind when considering (1) whether a law is just; (2) whether and under what circumstances transgression of even a just law might be justified; (3) what is a just and proportionate penalty for transgression of the law; and (4) what kind or degree of moral opprobrium, if any, one might justly visit upon violators of the law.
A somewhat related distinction, similarly important to bear in mind, is the distinction between, on the one hand, a violation of the law that is criminal in nature and, on the other, conduct that, while in violation of the law, is not a “crime”. The centuries-old tradition of Anglo-American law, rooted in the English common law of the Middle Ages, treated as crimes only actions that, according to the nature of the offense, were deserving of moral opprobrium. Actions proscribed by the law but not of their nature deserving moral opprobrium customarily have been deemed to be civil offenses. The offense of immigrating illegally, looked at in light of the Anglo-American legal tradition and compared with actions that have traditionally been considered crimes, is seen to be in the nature of a civil offense rather than a crime. The foregoing is not intended to suggest that laws proscribing non-criminal offenses do not need to be obeyed, but only that the nature of such offenses must be kept in mind in determining such things as, for example, what constitutes a just penalty for violation of the law.
The error of legal positivism
Nevertheless, there is a prevalent tendency to disregard or deny the foregoing distinctions, particularly with regard to laws restricting immigration. It is contended that “illegal is illegal” and that no further distinction or consideration regarding the nature of the illegality is admissible. This popular perspective would seem to be rooted, at least partially, in the modern intellectual error known as legal positivism. The legal positivist would disallow any distinction between a law proscribing action that is “malum in se” and a law that proscribes action that is “malum prohibitum”. According to this ideology, law as such is to be divorced from morality or ethics. As far as the field of law is concerned, what matters is that a law has been posited or set forth as the “law of the land.” Questions of morality, if entertained at all, are to be relegated to a separate field of inquiry that does not encroach upon the legal field. Similarly, with regard to the distinction between crimes and non-criminal offenses, the legal positivist looks only to the classification posited by the law and refuses to look to the nature of the act. If the positive law classifies a particular violation of immigration law as a crime, or upgrades a misdemeanor violation to the category of a felony, not because of the nature of the offense but in order to send a message or to increase the penalty, the classification posited by the law is all that one looks to, not whether the offense has the nature of a crime or how serious the nature of the offense is.
It must be said that traditional Catholic thought, with its strong emphasis on natural law, is bound to be opposed to legal positivism. On the other hand, Protestant thought would seem to have certain tendencies that more easily lead, not indeed to the ideology of legal positivism necessarily, but to sharing legal positivism’s perspective on certain issues. Protestant thought has tended to emphasize (divine) positive law rather than natural law, the written word alone rather than unwritten tradition, not going beyond or behind what has been set forth or set down, i.e., looking only to the will of the (divine) lawgiver and the mere fact that he has decreed something, rather than engaging in consideration of the nature of things in themselves and transcendental realities such as justice. For example, whereas Catholic thought lays strong emphasis on the classification of sins as serious or venial, basing such classification largely on consideration of the nature of the offense, Protestant thought does not perceive divine positive law (the Ten Commandments) or the written word of the Scriptures to be positing any such classification, and so it commonly holds to the view that “sin is sin”, declining to acknowledge any significant gradation based on justice or the inherent gravity of the act. One wonders whether the vulnerability of Protestant thought to the influence of legal positivism has more than a little to do with the prevalence of a strongly positivistic outlook regarding our country’s immigration laws.
Are the immigration laws just?
If the conduct of immigrating to our country without permission of the government is, according to the nature of the act, not wrong in itself but only inasmuch as it has been prohibited by human law in accordance with right reason and the just demands of the common good, then a question arises: Is such a law in fact reasonable and just? The ideology of legal positivism does not allow such a question to be asked. But the Western tradition, dating back to the ancient Greeks, and the Judeo-Christian tradition, has indeed seen this question as not only legitimate but necessary to ask, for if a human law is against reason and justice, it does not bind one to obey it.
A thorough examination of our country’s immigration laws for the purpose of determining whether they are just would be a daunting task. It is clear that a people’s natural right to migrate is conditioned by the state’s legitimate interest in controlling its borders in accord with the demands of the common good. But are the conditions that are being placed on the exercise of that right truly reasonable and just? Is it reasonable that large numbers of men and women of good will, desiring only the security and means of livelihood that are gravely lacking in their countries of origin, have recourse only to a legal immigration system that, in terms of the length and difficulty of the process and the quotas and standards for entry, does not seem to have a strong rational nexus, even in economic terms, with the state’s admittedly limited ability to welcome such immigrants—a system, moreover, that would admit only a tiny fraction of them and would, for very many of them, constitute an extremely grave burden and indeed a practical impossibility? Honest reflection upon the foregoing will perhaps suffice at least to point out some of the fundamental human goods that are at stake and to make clear that some of our immigration laws are at the very least problematic from the standpoint of reason and justice.
There are few, perhaps, who would not concede, when faced with the evidence, that there are serious problems with some of our country’s immigration laws and that they could be significantly improved upon. But the fact that a much better set of laws could be conceived does not necessarily mean that the current set of laws is unjust and therefore not binding. Indeed, in spite of the serious difficulties that many have raised regarding the justice of laws governing immigration to the United States, it can be conceded that, as to a number of these laws, reasonable persons can disagree as to whether they are just or unjust. Assuredly, the injustice of any immigration law or set of laws that unreasonably restricts the right to immigrate is a far cry from the injustice of human laws that disregard the much more fundamental right to life, such as laws that purport to legitimize the direct killing of innocent human beings through abortion and euthanasia. Such laws, as Pope John Paul II taught, “are completely lacking in authentic juridical validity,” (Evangelium Vitae 72) and “there is a grave and clear obligation to oppose them by conscientious objection.” (Ibid 73; emphasis in original). There is no such grave and clear obligation to oppose immigration laws by conscientious objection, even though some of these laws may be unjust. To act in conformity with an unjust immigration law does not make one complicit in the commission of an intrinsic moral evil. Indeed, in some cases the common good might even require action in conformity with an unjust immigration law, where greater harm might result from refusal to conform and where conformity does not involve any act that is immoral or unjust. In such a case, it is not the law itself that is binding but the demands of the common good.
May a just law ever be trangressed?
Presuming, then, that there is generally a moral obligation to comply with immigration laws, it may be fruitful to examine more closely whether and under what circumstances a person might nonetheless transgress the law without being morally blameworthy. Recall that we are not dealing with a law forbidding actions, such as murder or perjury, that are wrong in and of themselves, by their very nature, and therefore are wrong everywhere and in all circumstances. Rather, we are dealing with a law forbidding action that is deemed to be wrong only because it has been prohibited by the law. In Christian ethics, it has traditionally been held that a person may act contrary to such a law for a proportionately weighty reason, and in such a case the prohibited “wrong” is not in fact a morally wrong action in the circumstances of the case. This exception to the usual binding force of a law may be said to spring from a presumed will of the legislator, who, it is held, would grant an exception to the law in such circumstances if the case in question were before him. Or it might be said that the force of the law is simply overridden, in the compelling circumstances of the case, according to reason and justice. Regardless of the way in which one conceives of the exception, the action in question, although contravening the terms of the law, is seen to be morally justified under the circumstances. In the context of immigration, a person entering or remaining in the country illegally might be justified in doing so by weighty circumstances affecting himself or his family. Of course, such a person would be bound to have respect for authority and for the law and would be forbidden by the moral law to lie or commit fraud in furtherance of his entering or remaining in the country, even though morally justified in itself.
Liability and penalties
If illegal immigration were in the nature of a crime, compelling circumstances justifying entry into the country might conceivably translate into some sort of legal defense or justification that would preclude a finding of the requisite criminal intent. But as we have seen, illegal immigration is in the nature of a civil offense. Because a conviction for a civil offense does not carry with it the moral opprobrium and the severe penalties that potentially attach to a crime, the matter is typically governed by a regime that is closer to strict liability. That is, the state does not have to inquire at length into potential justifications or available defenses. Because the conduct is not in the nature of a crime, the penalty is necessarily a moderate one and is generally imposed on all alike. Even those who may have had a good reason for disobeying the law are held to respect for authority and for the law, and may be considered generally bound to pay the penalty for its transgression.
Such a regime of strict liability, it must be said, is eminently reasonable as a general matter. The common good requires good order and a reasonable amount of control over the immigration process, and so rules are made. There may be some for whom such rules present a considerable hardship, but the state does not have the resources, except in narrowly defined cases of asylum, to be exhaustively considering the causes in each case that have led to immigration contrary to the law. Nor in many cases would a state be in a position to entertain blanket claims of necessity, even when grounded in harsh economic realities. One thinks of the argument presented on behalf of the Haitian émigrés in the 1980’s—that poverty was such a threat to their continued existence that they all faced an overriding need to emigrate. Their argument was not accepted by the United States, and one can imagine the difficulties if it had been, both in terms of trying to evaluate the merits of such a claim, and in terms of the numbers who might have to be admitted, without regard to our ability to assimilate them. However, the substantive and procedural conditions to which the right to immigrate is subjected must in general be reasonable, that is, bearing some reasonable relationship to the real-life situation of most immigrants genuinely searching for the security and livelihood that they cannot find in their country of origin. If the substantive and procedural conditions are in general reasonable, then the fact that some would-be immigrants find themselves in dire straits not accounted for by the law (and therefore may be morally justified in transgressing it), does not make the law unjust or unreasonable. This is true even if a regime of more or less strict liability prevails, that is, even if cases of exceptional necessity or justification are not exempted from the law’s force, as long as penalties for transgression of the law are not disproportionate. The transgressor is morally obliged to respect for the law and the competent authority, and it seems that he generally would be obliged also to be willing to pay the penalty for transgressing the law.
In the context of our nation’s current immigration laws, however, there are two fundamental problems. One is that the process of legal immigration is unduly burdensome, not just for an exceptional few but for the vast majority who seek to immigrate. It does not even remotely begin to approach a reasonable accommodation of the real-life situation of most people impelled to come to our country seeking security and a means of livelihood. The right of such persons to immigrate is not being subjected to juridical conditions that can reasonably be met by the vast majority of them. In this situation, there are a large number of illegal immigrants who would seem to be, in the personal circumstances of the case, justified in transgressing the law. This reality, in turn, casts doubt on the reasonableness and justice of such laws.
The penalty of deportation—is a broad and general application the solution?
The other fundamental problem lies in the penalty that commonly attaches to illegal immigration—deportation. In the first place, it should be noted that our current legal regime does not even treat deportation as a penalty but as a remedial action that simply restores the status quo ante. This is entirely reasonable in the case of one who has just entered the country. But to make no distinction between such a case and that of one who has been living in the country for years, often since childhood, or who has entered into marriage and formed a family—to pretend that deportation in such a case merely remedies the earlier violation and restores the status quo, is to indulge in what amounts to a legal fiction that cannot be sustained in the face of basic demands of reason and justice. Thus we can say that the penalty of forcibly expelling the offender from the country is disproportionate, as a general matter, to the offense of illegally entering or remaining in the country, particularly for the large number who have done so for reasons that are truly just and grave in nature, and especially for those who have not recently entered but have established themselves and are residing in our country.
Here it is also relevant to note the well-known fact that in many sectors of our society the immigration laws were for a long time not enforced. On the contrary, while official quotas for illegal immigration were kept absurdly low in comparison with our country’s actual economic capacity for assimilation, there was a tacit acceptance and even encouragement of illegal immigration, e.g., on the part of business and other sectors of our society, an acceptance that proceeded also from some quarters of government. This acceptance was not only rooted in narrow economic interests but was rooted, for many people, in an understanding that, economically and otherwise, our country was in fact fit and able to receive these newcomers, who were ready to live and work here in peace, regardless of whether or not they might ever be able to become citizens.
In the foregoing context, deportation is seen to be undeniably in the nature of a penalty, not merely a procedure to restore the status quo ante, and moreover a penalty that, in view of the goods of which it effectively deprives those immigrants who have established a life for themselves in our country, is not generally proportionate to the original violation. Instead, monetary fines or the imposition of various disabilities, temporary or permanent, would bear a more reasonable relation to the offense of illegal immigration, which, as we have seen, is in the natureof a civil offense rather than a crime, whatever may be the designation given to it by positive law.
Of course, a different case is presented by immigrants, even legal immigrants, who have committed crimes. But even here there must be circumspection. Take the real-life case of an immigrant, a legal resident, convicted of manslaughter or second-degree murder and serving a thirty-year sentence. When he is released, at the age of 62, he is to be immediately deported to his country of origin, which he has not lived in since he was ten years old, even though his wife, children and grandchildren will have lived here for decades, and may be unable, or perhaps unwilling to accompany him. What does justice require or permit in such a case?
In dealing with this and other cases of immigrants who have committed crimes, there is a need for a rational analysis based on the demands of justice and the common good. Even after a just sentence has been served, there is a need, as to the subsequent residence of the immigrant offender, for political authority to continue to safeguard the common good. This responsibility is, in the first place, towards the community of which the authority properly has care. However, political authority also has an obligation to safeguard the universal common good, which of course includes the good of the immigrant’s country of origin. Thus, it would be in order to make inquiry along the following lines: To the extent that there is a fear of recidivism on the part of the offender, it is reasonable to ask, in which country is that risk better able to be lessened, and which country is better able to deal with the realization of that risk? To the extent that there is a hope for rehabilitation and even contribution to the common good, in which country is that hope more likely or better able to be realized? Are there considerations affecting the good of the individual, especially regarding separation from family, that would make deportation unjust? Is it right to make the offender the responsibility of another country simply because he was born there, regardless of where he was raised or what culture has formed him?
A reasonable consideration of the universal common good in no way involves a setting aside of the common good of one’s own nation; on the contrary, in the long term it will certainly redound to the benefit of all. One thinks of the formation in recent years of certain Latino gangs that are a menace in parts of our society. Was not a significant contributing factor the number of young Hispanic delinquents (particularly Salvadorans) deported away from their parents, however neglectful, to a country they had left when they were perhaps four or five years old? Landing rootless and shiftless in a country lacking our resources and rule of law, a country in which they might pass for sophisticated criminals, they formed themselves into increasingly violent gangs, and when many of them eventually returned to our country, these gang members and others who joined them were a much greater threat than they had been when they were deported. The responsibility for their crimes lies from first to last with the criminals themselves. But might a wiser deportation policy have been helpful in preventing at least some of the evils that ensued? Similary, our deportation policy has contributed in Guatemala to an extremely menacing state of lawlessness in the capital, and this has become in turn a factor that foreseeably leads to more illegal immigration by law-abiding citizens fleeing a situation of badly deteriorating security.
In light of the foregoing, there is a need in many cases to examine alternative penalties for illegal immigration. These could be monetary in nature—the billions of dollars sent to their home countries every year by illegal immigrants suggests that significant monetary penalties would be feasible, and would be a source of income, hitherto largely untapped, for the state or nation providing for their care. While many illegal immigrants already pay taxes, the prospect of being able to “emerge from the shadows” and obtain some kind of legal status would make it worthwhile to pay significant amounts of money in fines. The imposition of civil disabilities, even including the withholding of a path to citizenship, are alternatives to deportation that might be considered. At the same time, it should be remembered that the juridical conditions to which the right to immigrate may be subjected are especially to concern themselves with the duties of immigrants toward their country of adoption. Catechism of the Catholic Church 2241.
PART II: PASTORAL AND PUBLIC POLICY CONSIDERATIONS
In seeking to discern the Christian’s appropriate pastoral approach, we begin where we always should, with the Word of God. In the Old Testament, we read: “The LORD, your God, is the God of gods, the LORD of lords, the great God, mighty and awesome, who has no favorites, accepts no bribes; who executes justice for the orphan and the widow, and befriends the alien, feeding and clothing him. So you too must befriend the alien, for you were once aliens yourselves in the land of Egypt” (Dt. 10:17-19).
In the New Testament, Jesus gives us the following words:
When the Son of Man comes in his glory, and all the angels with him, he will sit upon his glorious throne, and all the nations will be assembled before him. And he will separate them one from another, as a shepherd separates the sheep from the goats. He will place the sheep on his right and the goats on his left. Then the king will say to those on his right, 'Come, you who are blessed by my Father. Inherit the kingdom prepared for you from the foundation of the world. For I was hungry and you gave me food, I was thirsty and you gave me drink, a stranger and you welcomed me, naked and you clothed me, ill and you cared for me, in prison and you visited me.' Then the righteous will answer him and say, 'Lord, when did we see you hungry and feed you, or thirsty and give you drink? When did we see you a stranger and welcome you, or naked and clothe you? When did we see you ill or in prison, and visit you?' And the king will say to them in reply, 'Amen, I say to you, whatever you did for one of these least brothers of mine, you did for me'” (Mt 25:31-40).
From Old Testament times, to the life of Christ himself, who with his mother Mary and St. Joseph lived in Egypt for years as an immigrant, to the end of time when all will be judged according to how we helped Jesus in the neediest among us, humanity has experienced migration (emigration, immigration, refugees, and asylum-seekers), and the People of God have been called to respond with mercy and generosity.
Faced with the complex issue of immigration, and especially with the presence of 11 million illegal immigrants, the first questions we should ask ourselves from a pastoral perspective are: What are the fundamental principles to be considered? What is right and wrong? In that light, what may we do, what must we do, and what may we not do? The practical social and political solutions our country seeks should flow from clear fundamental moral principles–not from emotional, financial, partisan or simplistic considerations. The consequences of not proceeding from such first principles include the potential for grave injustice (e.g., regarding the issue of abortion, the terms of debate center on secondary issues and do not go to the moral “heart” of the matter—the fundamental right to life).
As Catholics, we must form our consciences by the natural light of reason, confirmed by divine revelation and the magisterium’s teachings on social justice. Catholic social justice teaching is based on the fundamental dignity of the human person. Thus, we read in paragraph 1931 of the Catechism of the Catholic Church: “Respect for the human person proceeds by way of respect for the principle that ‘everyone should look upon his neighbor (without any exception) as “another self,” above all bearing in mind his life and the means necessary for living it with dignity.’ No legislation could by itself do away with the fears, prejudices, and attitudes of pride and selfishness which obstruct the establishment of truly fraternal societies. Such behavior will cease only through the charity that finds in every man a ‘neighbor,’ a brother.” Furthermore, we are told in paragraph 1932 that “[t]he duty of making oneself a neighbor to others and actively serving them becomes even more urgent when it involves the disadvantaged, in whatever area this may be. ‘As you did it to one of the least of these my brethren, you did it to me.’”
The foregoing is the broad teaching regarding the fundamental dignity of the human person. As for the practical application of the Church’s social teaching, there are a couple of preliminary points to be kept in mind: The Catechism of the Catholic Church tells us that “[t]he Church makes a moral judgment about economic and social matters, ‘when the fundamental rights of the person or the salvation of souls requires it’”(CCC 2420). “The Church's social teaching proposes principles for reflection; it provides criteria for judgment; it gives guidelines for action”(CCC 2423). That is, the Church, through her Magisterium (the teaching office of the Pope and bishops, guided, as Catholics believe, by the Holy Spirit), teaches fundamental truths of social justice–but she leaves it to government and civil society to develop corresponding public policy, to find practical solutions, to offer concrete applications.
Catholic Social Teaching on Immigration
In his recent social encyclical, Pope Benedict XVI surveys in summary fashion the current crisis regarding migration and immigration in a passage that is worth quoting at length:
Another aspect of integral human development that is worthy of attention is the phenomenon of migration. This is a striking phenomenon because of the sheer numbers of people involved, the social, economic, political, cultural and religious problems it raises, and the dramatic challenges it poses to nations and the international community. We can say that we are facing a social phenomenon of epoch-making proportions that requires bold, forward-looking policies of international cooperation if it is to be handled effectively. Such policies should set out from close collaboration between the migrants' countries of origin and their countries of destination; it should be accompanied by adequate international norms able to coordinate different legislative systems with a view to safeguarding the needs and rights of individual migrants and their families, and at the same time, those of the host countries. No country can be expected to address today's problems of migration by itself. We are all witnesses of the burden of suffering, the dislocation and the aspirations that accompany the flow of migrants. The phenomenon, as everyone knows, is difficult to manage; but there is no doubt that foreign workers, despite any difficulties concerning integration, make a significant contribution to the economic development of the host country through their labor, besides that which they make to their country of origin through the money they send home. Obviously, these laborers cannot be considered as a commodity or a mere workforce. They must not, therefore, be treated like any other factor of production. Every migrant is a human person who, as such, possesses fundamental, inalienable rights that must be respected by everyone and in every circumstance (Caritas in Veritate 62)
Regarding the Church’s perspective on immigration, we can distill five principles from the social teachings of the Roman Pontiffs and the bishops. Firstly, people—would-be immigrants—have the right to find opportunities in their own homeland. Governments and civil societies have the corresponding duty to provide such opportunities, as well as personal security and economic security. This is a responsibility of local and national governments towards their own people. At the same time, other nations, especially richer nations, must not evade their own grave responsibility to assist poorer nations in this regard. It will be recalled that Pope Benedict stressed this point during his 2008 visit to the United States, effectively summoning us to solidarity with the countries from which our immigrants originate and the provision of effective assistance to them in facilitating economic opportunities in those countries and otherwise alleviating the root causes of migration. International organizations will also have an important role to play in providing this assistance in facilitating economic opportunity in the countries from which immigrants originate. See Compendium of the Social Doctrine of the Church 440-443.
Secondly, people have the right to migrate to support themselves and their families. “The Church in America must be a vigilant advocate, defending against any unjust restriction the natural right of individual persons to move freely within their own nation and from one nation to another” (Pope John Paul II, Post-Synodal Apostolic Exhortation Ecclesia in America 65, 1999). It is to be noted that we are speaking here of a “natural right” and that sovereign nations should find a way to accommodate this right.
Thirdly, nations have the right to control their borders. This right is necessary for the common good of a nation’s own people, for security and the protection of human dignity–but it is not absolute. Moreover, this right may not be exercised invidiously: for selfish motives such as materialism or for ideological motives such as racism.
Fourthly, refugees and asylum seekers should be afforded protection. In the United States now, the grounds for asylum are very narrowly defined and applied. Yet, as regards immigrants from Latin America, from which most of our immigrant population is coming, the need for recognizing cases of genuine need for asylum seems to be expanding. In Central America particularly, the security situation has rapidly deteriorated in recent months, with a sharp increase in threats and large monetary demands from lawless elements, directed particularly at families of immigrants to the United States and at immigrants themselves if they return to their homeland. This is an acute phenomenon that has not received attention in the media but is being strongly felt on the ground by affected immigrants and their families.
Fifthly, the human dignity and human rights of illegal immigrants should at all times be respected. As Pope John Paul II stated: “Attention must be called to the rights of migrants and their families and to respect for their human dignity, even in cases of non-legal immigration” (Post-Synodal Apostolic Exhortation Ecclesia in America 65, 1999).
Pastoral Challenges and Responses
The first and most fundamental pastoral response is that of conversion—we must challenge all, beginning with ourselves, to conversion–in particular, that conversion of heart by which we are enabled to see Christ in the stranger. In achieving this conversion, there is a need to confront attitudes of cultural superiority, indifference, hostility and racism, and the tendency to see immigrants as foreboding aliens, criminals, or economic threats. This “negative” dimension of conversion opens the way to heed the positive summons to hospitality and communion.
We may be limited as individuals in our ability to address and alleviate the causes of illegal immigration. However, we can help to alleviate some of the undesirable effects, such as the lack of that healthy assimilation and cultural cohesion that ought to be cultivated in society even amid great diversity. Ways to help immigrants integrate would include teaching English as a second language. Efforts to facilitate assimilation and integration are likely to be especially fruitful with children, youth and young adults. Another area of attention would be the need to offer necessary social services, including legal assistance. Of course, as an ecclesial community responsible in some sense for the pastoral care of all people, the Church should attempt to offer pastoral care for all immigrants. At the same time, the faithful should have a special sense of responsibility towards the great number of immigrants to our country, even a majority, who as baptized members of the Mystical Body of Christ, the Church, are our brothers and sisters in the household of faith. In all of the foregoing, there is a need to focus on what unites us in our common humanity, even our common faith, rather than on what distinguishes us from each other.
Public Policy Challenges and Responses
In considering some of the basic principles that should guide makers of public policy on questions of immigration, it must be kept in mind that fundamentally we are dealing with a matter of justice: giving to each person his due.
In the first place, again, policymakers should look to address the root causes. There should be concerted efforts to promote personal and economic security and authentic development in the countries of origin. International aid should be generously but prudently given through international organizations that have proven to be trustworthy and effective, such as Catholic Relief Services.
Then there is the question of creating legal avenues for immigration. A top priority from a Catholic perspective would be facilitating family-based immigration. Lamentably, our laws often impede family unity (e.g., the child or spouse of a legal permanent resident can wait eight years for a visa to join his or her parent or spouse; parents are frequently deported with citizen children left behind). Another important area of focus is employment-based immigration. An alternative to undocumented immigration is to establish an efficient and fair legal pathway for foreign-born workers.
Finally, there is the issue of legalization for the undocumented who are in our country. Why are there 11 million illegal immigrants? Put most simply, because of jobs, jobs that have been given to them by us. Why? Because we needed the labor. At the same time, we did not have the political and economic will to close the border. These immigrants have worked (especially in construction and the service industry), paid taxes, obeyed laws, and volunteered. Their children are our citizens. In all honesty, we have all benefited, down to the fast-food service that we and our children take for granted. Not surprisingly, given the foregoing, most Americans support a path to legalization for undocumented immigrants.
Whatever the precise lines of our country’s system of immigration laws, now or in the future, a moral imperative is and will always be to maintain truly humane enforcement policies that respect fundamental human rights. In that light, the following are offered as some thought-provoking questions: Should a woman in the United States illegally, who has committed no serious crimes but who was detained in a workplace roundup, and who is the mother of American citizen children born here, be deported, leaving her children behind? Should minors who were, as children, brought to this country illegally by their parents, and who excel in academics and sports in high school, not be allowed to attend college in the United States? Should they be deported to their country of birth even if it is a country they do not know? Should couples who have lived together without being married, but then wish to marry sacramentally and legally, not be allowed to do so by law, since one is in the country illegally and the other is a legal resident applying for citizenship? Should the application be jeopardized by the fact of their marriage?
As always, the Catholic position is one of balance. To quote a 1999 statement by Archbishop Chaput of Denver, now the Archbishop of Philadelphia: “Our Church stands on the side of orderly immigration and is in favor of comprehensive immigration reform so our borders are protected and all people are respected. Both of those principles are very important for a Catholic understanding of migration, which is ultimately rooted in the Christian belief that we are all migrants in search of our heavenly homeland.”